Thus, in regard to the territories of the Hudson's Bay Company, it was alleged in the negotiations preliminary to the Treaty of Utrecht, that the French had acquiesced in the settlement of the Bay of Hudson by the Company incorporated by Charles II. in 1663; since M. Fontenac, the Governor of Canada, in his correspondence with Mr. Baily, who was Governor of the Factories in 1637, never complained, "for several years, of any pretended injury done to the French by the said Company's settling a trade and building of forts at the bottom of the bay." (General Collection of Treaties, &c. London, 1710-33, vol. i., p. 446.) The King of England, it is true, in his charter had set forth the title of the British Crown, as founded on discovery: the title by discovery, however, required to be perfected by settlement; and thus, in the negotiations, the subsidiary title by settlement was likewise set up by the British Commissioners, and the acquiescence of the French was alleged, either as a bar to their setting up any conflicting title by discovery, or as establishing the presumption of their having abandoned their asserted right of discovery.
What amount of _contiguous_ territory attaches to a settlement, so as to prevent the titles of two nations from conflicting by virtue of adjoining settlements, seems to be governed by no fixed rule, but must depend on the circumstances of the case. Vattel observes (l. ii., § 95,) "If, at the same time, two or more nations discover and take possession of an island, or _any other desert land without an owner_, they ought to agree between themselves, and make an equitable partition; but, if they cannot agree, each will have the right of empire and the domain in the parts in which they first settled." The title of _vicinitas_ was recognised in the Roman law, in the case of recent alluvial deposits, as entitling the possessor of the adjoining bank to a claim of property; but, if it were an island formed in the mid-channel, there was a common title to it in the proprietors of the two banks. "Insula nata in flumine, quod frequenter accidit, si quidem mediam partem fluminis tenet, communis est eorum, qui ab utraque parte fluminis prope ripam prædia possident, pro modo latitudinis cujusque fundi, quæ latitudo prope ripam sit: quod si alteri parti proximior est, eorum est tantum, qui ab ea parte prope ripam prædia possident." (Inst. ii., tit. i., § 22.) So, in the case where a river abandons its former channel, the ancient bed belongs to those "qui prope ripam prædia possident;" and in the Digest (xli., tit. i., l. 7,) we have a case supposed where a river has changed its course, and occupied for a time the entire property (totum agrum) of an individual, and then deserted its new channel: the Roman law did not consider that, strictly speaking, the title of the former proprietor revived, inasmuch as he had no adjoining land. "Cujus tamen _totum agrum_ novus alveus occupaverit, licet ad priorem alveum reversum fuerit flumen; non tamen is, cujus is ager fuerat, stricta ratione quicquam in eo alveo habere potest: quia et ille ager, qui fuerat, desiit esse, amissâ propriâ formâ: et quia vicinum prædium nullum habet, non potest _ratione vicinitatis_ ullam partem in eo alveo habere."